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epilogue Scholars have not been kind to Justice Holmes’s decision in Federal Baseball. The opinion ranks among the most frequently criticized in Supreme Court history, with commentators declaring it “unsatisfactory,”“irrational,” and “absurd.”1 These critics typically argue that “Holmes was clearly wrong” given the regularity with which professional baseball players traveled between states, and thus write the decision off as a reflection of the justice’s “utter misunderstanding of the nature of the business of baseball.”2 One author has even gone so far as to speculate that the decision may have resulted from a secret conspiracy between Chief Justice William Howard Taft and baseball’s first commissioner, Judge Kenesaw Mountain Landis (there is no sign of any such scheme in Taft’s correspondence from the period).3 As a result, the decision is generally considered “one of Holmes’s worst,” with the justice having had “one of the all-time worst days in Supreme Court history.”4 These criticisms are largely unfair. Although Federal Baseball would unquestionably be decided differently today, at the time Holmes wrote the opinion it actually “represented a fairly orthodox application of thenprevalent constitutional doctrine,” as U.S. Supreme Court Justice Samuel Alito noted in 2009.5 Indeed, as the foregoing analysis has shown, when Baltimore’s lawsuit was pending, courts interpreted the phrase “interstate commerce”much more narrowly than they do today.Although the Supreme Court would eventually transform its interstate commerce jurisprudence in the 1930s and 1940s—radically expanding the concept to encompass almost all commercial activity—at the time Baltimore’s suit reached the Supreme Court, the judicial system was still adhering to traditional definitions limiting commerce to just the production or sale of tangible goods. Viewed in that light, Holmes’s opinion appears much more reasonable. As George Pepper shrewdly argued throughout the litigation, the industry’s Grow_text.indd 219 12/20/13 11:37 AM 220 epilogue revenue at the time derived almost entirely from selling tickets to local exhibitions of baseball. Organized baseball neither produced any physical products itself nor received any income directly from the transportation of its players. Although the major leagues did earn some revenue from their contracts with equipment manufacturers and telegraph companies, these profits were not emphasized by Baltimore in its briefing, and in any event were relatively modest. Meanwhile, many of the features that would clearly render professional baseball to be interstate commerce today—such as the nationwide broadcasts of games over radio, television, and the Internet, and the major leagues’ extensive merchandising activities—were years away from being adopted in 1922 (or, in the case of radio broadcasting, only in their experimental infancy).6 Therefore, Holmes’s focus on the status of the actual baseball games themselves in Federal Baseball was more than justifiable at the time. Indeed, much of the criticism of Holmes’s decision is based on the erroneous belief that Federal Baseball simply holds that the business of professional baseball was not sufficiently interstate in nature to fall within the ambit of the Sherman Act.7 In actuality, however, the opinion was premised on two related, but ultimately separate grounds: (i) that organized baseball was not engaged in commerce, and (ii) that the relevant aspects of its business (that is, the games themselves) were not transacted across state lines (with the transportation of players being merely incidental to the overall scheme).8 Nor did Holmes formally “exempt” baseball from antitrust law, as many commonly believe; instead, he merely determined that the Sherman Act did not apply to the sport under contemporaneous judicial interpretations of the law, a ruling that was subject to reconsideration should the Court modify its interstate commerce jurisprudence in the future.Thus, to argue that Holmes’s decision was “absurd” or “clearly wrong” reflects a misunderstanding of the jurist’s actual holding and/or the state of the law in 1922. Meanwhile, some scholars have argued that the soundness of the Federal Baseball decision was undermined a year later by Holmes’s opinion in Hart v. B.F. Keith Vaudeville Exchange, an antitrust case involving the vaudeville industry (notably featuring George Pepper arguing for the defense).9 In Hart, the lower court had dismissed the plaintiff’s complaint before trial, concluding that vaudeville was not interstate commerce and therefore that the defendants could not be liable under the Sherman Act. Despite the similarities between vaudeville and professional baseball, Holmes nevertheless reversed the lower court, instructing it to hold a trial in the case. The...

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